Two of the most important Dalit issues have been impacted by these judgments: protection from atrocities and adequate representation.
The Supreme Court of India is regarded as an institution that ‘heroically’ defends civil liberties and acts as a protector of the marginalised social groups against oppressive social structure. It upheld individuals’ right to privacy, recognised LGBT rights, and allowed the entry of women into Sabarimala temple in the past one and half year. But three other judgments in the past year have broken the Constitution’s protective boundary that existed between the marginalised communities and structural social injustices.
Two of the most important issues for Dalits have been impacted by these judgments: protection from social oppression and atrocities and adequate representation. They form the central ingredients of the constitutional promise to Dalits. This promise is a reflection of their aspirations and expectations in a constitutional democracy.
Despite facing constant hardships, Dalits and backward communities have been ‘at the forefront of owning a constitutional culture’, wrote scholar Pratap Bhanu Mehta. They see the Constitution ‘as their own’. It is their belief that governments and courts will protect the constitutional promise of representation and dignity.
Also read: Why All India Judicial Service and reservation in judiciary won’t be a reality in 2019
Dilution of atrocities?
The first judgment, delivered by a Bench of Justices A.K. Goel (now retired) and U.U. Lalit, had ‘diluted’ the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act), thereby rendering it ineffective.
The judgment had watered down the denial of anticipatory bail — a key provision of the SC/ST Act, and further restricted the registration of FIR and possible arrests of people accused under the Act.
It led to nation-wide protests by Dalits. As a consequence, the Parliament had to bring an amendment in the SC/ST Act to undo the regressive effect of the judgment.
The challenge to the amendment is currently pending before the Supreme Court.
‘Creamy layer’ among SCs and STs
The second judgment, delivered by a Constitution Bench in the second half of 2018, was related to reservations for SCs and STs in promotions. The court, speaking through Justice R.F. Nariman, refused to refer its earlier decision in the M. Nagaraj case to a larger bench, while also introducing the concept of creamy layer in SC/ST reservation jurisprudence.
The creamy layer requirement was not present in the Nagaraj judgment, which was also delivered by a Constitution Bench. The conditions set out in Justice Nariman’s judgment make it very difficult for any government to introduce reservation in promotion policies.
Also read: Why ‘13-point roster’ is Modi government’s litmus test on university faculty reservation
Department-wise quota
The third judgment delivered last week, by a Bench of Justices U.U. Lalit and Indira Banerjee, rejected the challenge against a 2017 judgment of Allahabad High Court, which had held that teaching posts in universities will be reserved department-wise, not according to the total number of posts available at a university.
This is likely to cut down the number of teaching posts reserved for SCs, STs and OBCs across central universities heavily. Taking note of the fact—according to a recent RTI disclosure—that reserved category posts in central universities are largely vacant, the stand taken by the Supreme Court will ‘further shrink the representation of marginalised sections’ across the universities.
The expectation of marginalised groups from the Supreme Court was that if governments are negligent in implementing and furthering the structures of social justice set out in the Constitution, the top court will come to their rescue and maintain Dalits’ faith in constitutional institutions.
But successive governments have been negligent in implementing social justice legislations and reservations in government jobs. These three judgments appear to provide a kind of approval for this negligence.
And now, the Supreme Court itself appears to be contributing to the erosion of the social justice narrative.
Also read: SC okays dept-wise faculty quota: Harms university reservation or even spread of jobs?
In his article “Has the Supreme Court Been More a Friend or Foe to African Americans?”, Harvard Professor Michael Klarman has stated that the United States Supreme Court has been a regressive force on racial issues. The Supreme Court of India seems to have adopted a similar approach on social justice issues, as it has diluted reservation structure.
This is set to alienate Dalits, tribals and backward communities, as they regard these Supreme Court judgments as creating a direct threat to their concerns. This is also due to the fact that these judgments are coming from a court that has had no Dalit judge in over eight years.
The credibility of an institution such as the Supreme Court cannot flourish in a constitutional democracy if its marginalised communities do not explicitly express their trust in the institution. The court must start making reparations to regain the faith of the marginalised communities.
The author is an LLM student at Harvard Law School. He tweets at @anuragbhaskar_
I wonder what purpose it serves to go into spurious comparisons with the American SC (a body whose composition is determined by party ideology; the judges are appointed by Presidents and Senators) or spout vague terms like “social justice narrative” which have no validity in a courtroom, instead of going into the merits and demerits of actual arguments put forward by SC while delivering those judgements e.g. is the 13-point system unfair? How does the Atrocities Act sit with the basics of a “fair trial”? Not saying the SC is always right, but the author doesn’t even attempt to engage.
Also, saying that the SC will lose the esteem of Dalits (or any community for that matter) if it doesn’t deliver verdicts amenable to them is a bizzare idea which is at odds with the very concept of a court of law, which is that you respect its rulings whether you agree with them or not. The court, in all three cases, acted entirely within its constitutional remit (anyone who disagrees is free to appeal).
Oh, and as regards reservation in University posts, the actual number of reserved posts is pretty inconsequential, given that most of these posts remain vacant anyway. Any challenge here is purely for optics, democratizing education is a far more pressing problem.
It’s difficult to understand why the author chooses not to take up the arguments in the particular judgements he speaks about (for example the merits and demerits of a 13 versus 200 point roster system, or the basics of what constitutes a “fair trial”) , rather than drawing spurious comparisons with the American SC (which, unlike ours, is determined by Presidents and Senators and is therefore transparently an instrument of party ideology) or talking about some vague “social justice narrative” that has no standing inside a courtroom. Surely the judgements weren’t INTENDED as a blow against reservations?
The idea that Dalits, or any other section of the society, will only respect an institution if it delivers verdicts amenable to them cuts at the root of the very idea of a court, in that one obeys a judicial ruling, whether one agrees with it or not.
The SC was working entirely within its remit when it delivered these judgements, one of which was nothing but a dismissed appeal (if anyone disagrees, they can always appeal). As for the material part, the UGC’s numbers prove that, at least in universities, simply increasing the number of reserved posts is pointless: there’s no one to fill those posts because we haven’t been able to democratize access to education.
The author rightly pointed out the flaws in the decisions.
Justice V R Krishna Iyer once stated that ‘The kernel of justice in a country of mass poverty is social justice” (Iyer 1984:55). It seems the Supreme Court should revisit the decision, if not, then they are deviating from constitutional morality, and certainly the framers vision who intended supreme Court to be ‘an arm of social revolution’.
The author has rightly pointed out the anti-social justice approach of the Supreme Court. The Supreme Court who, in recent years, delivered some path breaking decisions on gender, where it opined ‘Constitutional Morality’ to underline the positive approach of the executive i.e. a positive obligation to reinforce constitutional values. Same interpretation equally applies to Supreme Court with respect to Dalits.
Supreme Court will be revered as citadel of justice, if it stands for the socially deprived sections, in enhancing their rights and not making them legally broken people.
It is better to remove all the reservations and implement reservations based on creamy layer.
Even SC/STs are unable compete dude to creamy layer. Most important thing is to eliminate the Christians who are utilizing the SC reservations by claiming their caste as Hindu-SC.